Thursday, August 09, 2007

Weather Report

What’s Wrong With This Picture?

The agenda for the Monday council meeting originally had 85 action items listed. The consent agenda, which had 47 of these items, that all councillors agree needed no further discussion, had one item removed for further debate and passed unanimously on a single vote. A number of items were deferred to a later date without much discussion. The six public hearings seemed to evaporate into simply taking procedural votes.

At eight-fifty three, Councillor Sally Mayer, above right, next to Council President Debbie O'Malley, looked at the clock. This event signaled what would later transpire. In her first term, Mayer had proposed a rule that council meetings automatically adjourn at 10:30 pm. The meeting ran well past 11:30. Mayer, as vice-president, is responsible for making the motion to extend the meeting if time critical legislation is still on the agenda. She had her own time sensitive resolution pending.

The other image of the meeting was Assistant City Attorney Marc Shoesmith, left, catching a few winks. He didn’t miss a thing.

“I’ve always wanted to say, I’m loath to do this,” Mayer said, as the clock neared 10:30. She then moved to suspend the rules and extend the meeting 30-minutes. Mayer clearly does not understand her own rule. A meeting may not automatically adjourn while a motion is on the floor. It takes a motion to adjourn, which is always appropriate, according to Robert’s rules of order.

At the end of an action item, when time has expired, a motion to suspend the rules for the next item or a time specific is in order. However, if a new item is taken up prior to the expiration of the time specific, the meeting continues until the issue under discussion is dealt with.

Mayer made three more motions during her issue to ask for an additional five minutes. Asking for such a short time is inappropriate because it pressures the debate. There is an appropriate motion available, through Roberts, to limit debate, but that was not what she was doing.

Mayer’s resolution called for a public hearing on Aug. 20, to rehear a liquor license transfer that has lately drawn some attention.

As reported earlier, a business group wishes to transfer a liquor license from an Estancia bar, under the new name, All Fours, applying it to the same location as the old Chapter II show club that closed a couple of years ago in the Wyoming Mall.

The state’s Alcohol and Gaming Division of the state Regulation and Licensing Department granted a preliminary approval and sent the case to the City of Albuquerque’s hearing officer, Albert Chavez.

During the public comments, State Rep. Janice Arnold-Jones, left, whose District 24 includes the area, spoke about the procedural problems caused by the state and city both having partial jurisdiction, yet neither seeming able to act in accordance with the communities wishes.

The Inez neighbors were told that they would be unable to get an appeal to the city’s Environmental Planning Commission or the city council after the city’s hearing officer had approved the liquor application, Arnold-Jones said in an interview, following her comments. An opponent to the bar told her after the city hearings, that the first hearing held by Chavez had no notice posted, Arnold-Jones said. A second hearing was held and Chavez sent his report back to the state for final action.

Inez Neighborhood Association President Evelyn Feltner, above, spoke against the transfer and asked for an additional hearing and that the city and state needed to change the ordinances and statutes to prevent such an occurrence from happening again.

Feltner raised a couple of issues she thinks are compelling enough to halt the opening of the proposed strip club. She claimed that throughout the city, no other strip club, topless bar or adult entertainment center is within a mall or an attached building.

She claimed that the area is saturated with six liquor establishments within two tenths of a mile of the site.

The Inez neighborhood is due west of the Wyoming Mall and is bounded by Wyoming Boulevard, Indian School Road, Pennsylvania Street and Menaul Boulevard.

When Mayer’s resolution finally came up for discussion, the Regulation and Licensing Department Superintendent Edward J. Lopez Jr., left, spoke about the process. The state now views that the requirement is to have the governing body of the city take the administrative action, rather than allowing the delegated hearing officer to make the finding. The council president signs off on the finding and forwards it back to the state.

Lopez stated that his department is now requiring that the government body, in this case the city council, must hold the hearing.

Heinrich, right, said that when he was president of the council in 2006, he routinely signed off on the hearing officer’s finding. He recounted that he normally had no problem signing-off. However, even if he had a problem, it was his understanding that he was not allowed to reject the finding and that if he didn’t sign, the state would issue the license automatically.

Assistant Attorney General Francine Ann Baca-Chavez, above, of the litigation division, representing the state Regulation and Licensing Department, restated the argument she had made before Bernalillo County District Judge Ted Baca during the hearing. She contends that the statutory process, in effect since 1993, had not been followed by the city.

After Baca-Chavez’ commentary, City Attorney Bob White was concerned that her statement was drawing the city into the case. He thought she said the city had to file paperwork in addition to the state and All Fours. Baca-Chavez assured him that the city was not a party to the action.

Mark Rhodes, the attorney for the owners of All Fours, explained there had been five hearings in an administrative process that should only include two hearings and otherwise a review of documents. The city had conducted two hearings: one to review the health, safety and morals standard of proof, and at a second hearing, information about zoning questions were introduced and were ruled outside of the scope of the inquiry, according to Rhodes.

All Fours filed a writ of mandamus, Rhodes said. Such a writ is used to force, usually a government entity, to do what they’re required by law.

Rhodes stated that the hearing officer was almost acting on behalf of the neighbors, but had still come to the proper conclusion, because his clients had met all the requirements and properly followed all the procedures. He pointed out that the process required that the “director shall,” issue the license once the city made a positive finding.

Harris, a lawyer and a former assistant city attorney himself, above, seen with Councillor Ken Sanchez, questioned the constitutionality of the proposed resolution both during the public comments section of the meeting and again during the debate.

The city has been using the same process since the 1970s and this was the first time this issue was questioned, White, above right with Chief Administrative Officer Bruce Perlman. said. If an opponent was dissatisfied with the hearing officer’s findings, recourse was an appeal to District Court, White said.

Loy was concerned about the possibility of being drawn into a lawsuit.

Cadigan, also a lawyer, above left, asked Mayer, above right, if she would be satisfied with holding a hearing without the council taking any action as a forum for citizens. Mayer said that, not only did she want the hearing, but also wanted to take the action that would set a new procedure that would retroactively undo what has already happened.

The council voted on Mayer’s motion of “do pass” which failed, 3-5-1 with: Councillors Mayer, Brad Winter and Heinrich voting for, while O'Malley, Benton, Cadigan, Loy and Harris voted against. Ken Sanchez was excused for a family emergency.

So what’s wrong with this picture?

The Inez newsletter displays its logo of a Teddy Bear hugging a doll with the motto, “Loving, Caring, Sharing,” on it.

Contrary to Inez neighborhood President Feltner’s assertions, that there are no adult entertainment centers or topless bars attached to another building, there is a topless bar, Knockouts, above, in the middle of the 300 block of Central Avenue downtown. Downtown also has a greater saturation of liquor licenses than does the Wyoming Mall area. There are an increasing number of newly established residential units in the form of lofts, condominiums and apartments downtown. A couple of years ago, a nude bar, that was attached to a youth facility, the Ice House, was closed.

Now the city council has taken up the issue.

Though I’m pretty sure that is not what Lopez and Baca-Chavez had in mind for the state’s theory, they are stuck with it.

No one specifically said it, however, it was alluded to, about the management concept where practice becomes policy. Several years ago, before any of the current members of the council were elected, I observed a piece of legislation passed that was similar. It granted full authority to an administrator to act for the council without reporting back. At the time, I recognized that there was a basic philosophical problem. The management theory is that a higher entity may delegate authority, but may not delegate responsibility. The city admitted it is exactly what they did in the ordinance that underlies this issue.

The ultimate question for the judge may not have been made any easier.

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About Me

I am a retired law enforcement officer who has a life long interest in photography and journalism. I focus mainly on issues of local politics, though I will step off into state, national and international issues. I have a history of watching government closely with a particular eye on process. I look carefully for the unusual, quirky and any exceptions that are granted which cause unfair treatment amongst citizens or businesses. I view governmental activity first through a constitutional lens. Then I assess adherence to process, the rule of law and the rules that govern them. I look for and attempt to expose hypocrisies and inconsistencies. I also look for laws that do not forward the ideals of human rights. I will rail at bad, unenforceable, unconstitutional laws and those who create and attempt to enforce them.
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